Opinion
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of Los Angeles County No. CK39647, Marilyn Mackel, Commissioner.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Father appeals from a juvenile court order terminating parental rights over his 15-year-old daughter and 12-year-old son. Father claims that because his children did not agree with and consent to adoption, Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(ii) provided an exception to termination of parental rights. We conclude that by failing to raise this exception in the juvenile court, Father has forfeited his claim of error on appeal, and further conclude that substantial evidence supports the juvenile court’s finding that the children agreed with and consented to adoption. We therefore affirm the order terminating parental rights.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
This dependency case began in October 1999, when the Department of Children and Family Services (DCFS) placed siblings Darci B. and Dominic B. in foster care. In a prior unpublished opinion, In re Darci B. (Apr. 25, 2006, B188452) (Darci I), this court denied Mother’s petition for an extraordinary writ seeking to vacate an order terminating reunification services and setting a section 366.26 hearing. The Darci I opinion set forth facts covering the period from 1999 to January 2006.
On February 6, 2007, the juvenile court selected legal guardianship as Darci’s permanent plan and ordered twice monthly monitored visits and monitored telephone calls for Darci and Mother. Mother appealed the visitation and telephone calls order, which resulted in a second unpublished opinion by this court, In re Darci B. (Dec. 6, 2007, B196121) (Darci II), which affirmed the juvenile court order. The Darci II opinion set forth facts covering the period between January 2006, and February 2007.
In the present appeal, Father appeals from juvenile court orders entered on November 12, 2008, terminating his parental rights. In this opinion we summarize and incorporate portions of the factual and procedural backgrounds set forth in Darci I and Darci II, and provide additional factual background of events since February 2007.
The November 12, 2008, order also terminated the parental rights of Mother, who has not appealed that order.
1. Detention
On October 27, 1999, the DCFS detained three-year-old Dominic and six-year-old Darci and placed them in foster care. Mother was arrested for child endangerment and Father was arrested for felony burglary for shoplifting in a Costco. Mother and the children lived in a pickup with a camper shell, which contained three loaded guns within the children’s reach, a loaded magazine, several loose rounds of ammunition, and stolen merchandise. An “overpowering” stench emanated from the vehicle. Neither child was toilet-trained; Darci wore a diaper and had defecated in her pants. Darci could not form sentences and spoke in broken English. The police report said the children acted like “animals” and one tried to bite a police officer.
2. Sustaining of the Dependency Petition
The juvenile sustained the section 300 petition, found the children persons described by section 300, subdivision (b), declared Darci and Dominic dependent children of the court, ordered custody taken from the parents and placed with the DCFS, ordered a psychological examination of the parents and children, ordered the DCFS to provide family reunification services, and ordered visitation and the case plan as described in the court-ordered disposition case plan.
3. Reunification Period from January 5, 2000, to April 4, 2001
In the first reunification period, Father was reported to have complete control over the children and Mother, who passively observed and went along with whatever he said. Father threatened foster agency staff during visits, and in July 2000 followed the foster mother home, resulting in re-placement of the children. The parents consistently visited the children, but their demeanor was hostile and confrontational. The children did well in foster placement, were toilet trained, did well in special education classes, and participated in therapy. On April 4, 2001, the juvenile court found that returning the children to their custody would create a substantial risk of detriment to the children’s physical or emotional well-being, ordered termination of family reunification services, found that the children were not adoptable, ordered the DCFS to continue long-term foster care, and set a review of permanent plan hearing in six months.
4. Long-Term Foster Care From April 4, 2001, to June 10, 2004
In October 2001, the DCFS reported that the parents’ actions showed they were only going through the motions to satisfy court-ordered requirements. A family therapist described 10 sessions with family members as “difficult and chaotic” as Mother played with the children and Father expressed his dissatisfactions and impatience with the system. The therapist made no progress to change family dynamics. The parents’ visitation became unmonitored in July 2001, but after five unmonitored visits the children’s center, where visits occurred, informed the DCFS that they would no longer host Father’s visits because of a domestic dispute between Father and Mother on August 16, 2001, on the center’s grounds and Father’s continuing failure to avoid restricted areas. It was observed that when Father was not present, Mother and the children became closer and such periods were calm and harmonious, as contrasted with the hyperactivity, confusion, and tension occurring when Father was present.
After separate foster care placements in December 2001, Darci and Dominic were placed at Five Acres in November 2002. The juvenile court ordered the DCFS to implement a plan for Five Acres to include conjoint counseling and unmonitored visits. By March 2003, Mother continued to visit the children and participate in conjoint counseling. The DCFS believed that Darci had become more moody because Father was incarcerated and that Darci was disappointed in Father. By September 2003, Father was released from jail and returned to the home with Mother. Father had not visited the children since his release, but Mother allowed the children unmonitored phone calls with him. Staff at Five Acres reported that after their calls with Father, the children became unmanageable. Five Acres staff requested monitored visits for Mother, who continued to allow the children’s calls to Father to occur despite being told not to do so. By March 2004, the parents did not have consistent positive involvement with the children and had not shown their willingness to cooperate with treatment services.
5. Second Reunification Period: June 10, 2004, to January 4, 2006
The juvenile court granted Mother’s section 388 petition in part in June 2004 and ordered family reunification services for Mother and ordered the family to attend family group decision making. By September 2004, the parents consistently visited the children and were involved in therapy intervention services with both children’s therapists. After a DCFS group meeting on July 13, 2004, produced a plan for the children’s return to the parents, they worked with therapists and had regular contact with the DCFS to accomplish that plan. The parents, however, had not yet found appropriate housing, making overnight visits not yet appropriate. In September 2004, the juvenile court found the parents complied with the case plan and ordered the DCFS to provide family reunification services.
In November 2004, Father was arrested for robbery. Mother disclosed that Father had verbally and emotionally abused the children during unmonitored visits, showing her inability to intervene on the children’s behalf or to stop or report abuse. She said she was unwilling to report the incidents for fear Father would harm her. In December 2004, Mother enrolled in domestic violence counseling. By March 2005, Father was incarcerated in state prison for a sentence of unknown duration. Mother had not yet acquired adequate housing for the children.
In August 2005, Darci moved in with foster parents who later became her legal guardians.
By September 2005, Mother was unable or unwilling to move from the apartment she had shared with Father. Mother’s nine months of treatment had limited success, and mental health issues appeared to limit her understanding of what the children needed and what she could do for herself. She depended on Father and had not shown she could function without him. The DCFS considered it likely that upon release from prison, Father would resume his place in the family.
6. Termination of Reunification Services and Setting the Matter for a Section 366.26 Hearing
By October 2005, Mother complied with court-ordered monitored visits and phone calls, but presented no further information that would cause the DCFS to alter its recommendation to terminate reunification services.
In an October 18, 2005, hearing, Mother testified that she had participated in domestic violence counseling since December 2004 and in conjoint counseling with the children. She admitted that past domestic violence had occurred and that she had not begun domestic violence counseling until after Father’s arrest. A month earlier she sent a letter to Father stating that she wanted no contact with him when he was released from prison. She said that if he contacted her after his release from prison, she would call the police and get a restraining order. Although Mother said she was going to divorce Father, she admitted she had obtained paperwork only a week earlier, did not have an attorney, and had not yet told Father she intended to file for divorce.
Darci, now in the sixth grade, also testified. Darci said she called Dominic every day and saw him once a week. Darci was happy knowing that Mother wanted to live with her and would be happy to live with Mother, but Mother’s house was too small for three people. Darci testified that she was scared of Father, who yelled at her, and felt she could protect everyone from Father.
On November 3, 2005, the DCFS reported that Mother struggled to end her ties with Father, and was unable or unwilling to move out of the apartment she had shared with him. She maintained the apartment as if Father were still living there, received assistance from Father’s church to pay her rent, and 10 months after Father was incarcerated Mother had not removed his voice from her answering machine or his wheelchair ramp from apartment steps. Seventeen months after Mother stated that she would have a new apartment, she had not yet found another apartment. Mother communicated regularly with Father during his incarceration, and sent more than 20 letters to Father during his year-long incarceration. With one exception, the letters documented Mother’s commitment to Father and did not show she was moving on with her life. The exception was an October 1, 2005, letter that asked whether Father should go his own way upon release because of Mother’s heartache since he decided to fulfill his plan to get custody of the children.
The DCFS concluded that Mother had made only limited progress in four and one-half years of therapy, and the therapist did not indicate that there would be any significant results soon. Mother had not shown that she understood the children’s needs, and repeatedly stated that the children only needed to come home and all their problems would be fine. The DCFS reported that Darci’s “extreme parentification” caused her to feel responsible for Dominic and Mother.
On January 4, 2006, the juvenile court ordered family reunification services terminated for Mother and set the matter for a May 2, 2006, section 366.26 permanent plan hearing. At the January 4, 2006, hearing, the DCFS reported that Darci had acclimated well to her foster home and trusted and relied on her foster parents, who now also wanted Dominic to be placed with them.
7. The Section 366.26 Hearing
After placement in her foster home in August 2005, Darci’s school performance and behavior had improved by May 2006 and she participated in the Big Sisters Program. Darci had weekly monitored visits with mother and regular contact with Dominic. The DCFS identified a permanent plan for Darci of adoption by the foster parents, who desired to adopt Darci and also to adopt Dominic. At this time Darci felt she wanted an open adoption to allow her visit with Mother.
By September 2006, Darci wanted to live with her foster parents. Darci continued weekly visits with Mother, but Mother missed all four visits in July.
By December 2006, Darci was ambivalent about adoption and the DCFS no longer recommended adoption as the permanent plan. Darci was doing well in her foster home and had improved grades at school. At this time, the DCFS informed the juvenile court that Mother’s visits with Darci needed to be closely monitored. Mother discussed Father’s situation with Darci, which caused Darci to become conflicted and to adopt Mother’s feelings about Father as her own. Once Mother voiced objections to adoption, Darci began to waiver in her desire to be adopted.
At the December 28, 2006, section 366.26 hearing, Darci testified that she agreed that her foster parents could become her legal guardians. On February 6, 2007, the DCFS recommended legal guardianship for Darci. Darci was not interested in adoption, which could affect her close relationship with her brother. The foster parents agreed with the plan of legal guardianship. Mother appeared at the February 6, 2007, hearing with her new fiancé, whom she had known for two months. They had moved in together in Riverside County. Dominic’s clinician reported that the fiancé had accompanied Mother during visits with the children, and reported that Darci had increased behavioral issues following the visits.
The juvenile court selected legal guardianship as Darci’s permanent plan, and ordered twice a month monitored visits for Darci and Mother, monitored phone calls, and no contact with Mother’s fiancé. The juvenile court issued letters of guardianship the next day. Mother appealed the February 6, 2007, order, claiming that the juvenile court abused its discretion by ordering twice a month monitored visitation as opposed to weekly unmonitored visitation, and by ordering monitored rather than unmonitored phone calls. In an unpublished opinion filed on December 6, 2007, this court found no abuse of discretion and affirmed the visitation order.
8. June 1, 2007, Status Review Hearing
As of May 17, 2007, the DCFS reported that Darci lived with her foster parents, and Dominic remained at a group home in Altadena. He had overnight weekend visits with Darci at her foster home for approximately one year. Dominic’s placement at his group home was successful, but he and the group home staff felt that he had received the maximum benefit from his stay there and Dominic was ready to advance to living in a single family arrangement. Darci and Dominic desired to be together as siblings and the foster parents were willing to have Dominic live with them. Dominic was eager to spend time with Darci and with the foster parents, expressed his delight in having consistent weekend home visits with them, and desired to communicate with the foster parents by phone during the week. Dominic had developed a fond relationship with Darci’s foster parents. The foster parents had shown a commitment to Darci despite her sometimes challenging behavior, exposed Darci to extensive travel, and introduced her to their family members and made her feel as though she were a member of their family. Darci and Dominic had received and benefitted from extensive therapeutic services. The court reduced Mother’s visitation to two monitored visits per month.
Darci and Dominic appeared ambivalent about their desired permanent placement, as neither child wanted to hurt anyone’s feelings. As of April 28, 2007, however, Darci expressed her desire to be adopted by the foster parents. The DCFS concluded that the foster parents had been tenacious in their commitment to both Darci and Dominic.
Neither Mother nor Father had shown any changes that would cause the DCFS to consider returning the children to either parent. Father remained incarcerated from other charges stemming from another offense. Mother tried to start over by terminating her marriage to Father with the intention of marrying her fiancé.
On June 1, 2007, the juvenile court limited the parents’ rights to make educational decisions for Dominic, and appointed the foster parents as responsible persons to represent Dominic in educational matters. For Darci, the juvenile court ordered a permanent plan of legal guardianship and a specific goal of emancipation. For Dominic, the juvenile court ordered a planned permanent living arrangement with foster care and a specific goal of emancipation. The matter was set for a review of permanent plan hearing, which took place on December 12, 2007.
9. The December 12, 2007, Review of Permanent Plan Hearing
The DCFS reported as of November 30, 2007, that Darci and Dominic lived with Darci’s legal guardians and foster parents. Dominic had transitioned to his new placement with ease. The family enjoyed a busy summer and “did some serious bonding.” The foster parents had seen to each child’s needs, and had advocated for Dominic in the local school district, which allowed him to attend sixth grade in a mainstream middle school and to be enrolled in a special education program, where he was doing extremely well. He attended the same school as Darci, who continued to improve academically and was doing extremely well academically and socially. Both children continued in weekly individual therapy.
Darci and Dominic felt ambivalent about choosing their desired permanent placement, as neither child wished to hurt anyone’s feelings. The foster parents planned to seek legal guardianship of Dominic. The DCFS recommended that the foster parents be considered for legal guardianship of Dominic.
During this period neither Mother or Father demonstrated efforts to assume responsibility for Darci or Dominic.
On December 12, 2007, the juvenile court ordered the permanent plan of legal guardianship for Darci and a specific goal of legal guardianship. The juvenile court ordered Dominic placed with the prospective legal guardians and ordered the permanent plan of permanent living arrangement with those foster caretakers and a specific goal of legal guardianship. The juvenile court set a section 366.26 hearing as to Dominic for March 11, 2008.
10. The Order Terminating Parental Rights
For the March 11, 2008, hearing, the DCFS reported that Dominic continued to do extremely well in his special education program and in a sixth grade classroom. Dominic was no longer prescribed Ritalin, as his anxiety and defiance had diminished and his concentration had improved. His therapist still saw him weekly. The DCFS reported that it was very likely he would be adopted by his foster parents, with whom he had developed a child-parent bond. The foster parents had an approved adoption home study to adopt Darci. An adoption home study update for the foster parents, to include Dominic, was in progress and expected to be completed within three months. The foster parents wished to formalize their parental role through adoption. They had successfully met all Dominic’s basic and special needs and showed they were able to meet his needs after he was adopted. The foster parents had intended to provide a permanent home for Dominic since they became his foster parents.
Dominic told Michelle Chan, the DCFS Permanent Planning Liaison, that he wanted to be adopted by his foster parents. His social worker followed up with Dominic, who continued to express his desire to be adopted by his foster parents.
Mother opposed adoption, felt she was “being given a bad shake,” stated that she had no contact with Father for two and one-half years, and asserted that a one-hour visit every other week with the children was not enough time to bond.
Father stated that he was in a prison near the Oregon border and it was difficult to get to Los Angeles County. He reported his release date was September 6, 2009. He stated that his children told him they did not want to be adopted. Father opposed adoption and wanted his children back.
On March 11, 2008, the juvenile court ordered the permanent plan of legal guardianship for Dominic, and set a section 366.26 hearing for June 11, 2008. Letters of guardianship issued appointing the foster parents legal guardians of Dominic.
For the June 11, 2008, hearing, the DCFS informed the court that the adoption home study for the children’s caregivers was approved on May 20, 2008. Darci and Dominic remained in the prospective adoptive parents’ home, did well in school, and participated in individual therapy. Although hesitant about their feelings, both children at times expressed positive feelings about adoption. The DCFS described the children’s desire for adoption as changing from time to time. Neither child was willing to discuss the matter with the CSW, but had discussed difficulty with adoption with other social workers. During a monitored visit with Mother, the CSW observed that both children appeared angry, hostile, and unresponsive to Mother’s requests. Darci appeared angry and disturbed whenever the CSW had contact with her and refused to participate in meaningful dialogue. The CSW stated that Darci and Dominic did not want a CSW in their lives. Both children, however, said they were happy and enjoyed living with their prospective adoptive parents.
On June 11, 2008, the juvenile court continued the section 366.26 hearing to September 9, 2008, for a contested hearing by the parents.
For the September 9, 2008, hearing, the DCFS reported that the children’s inability to state that they wanted to be adopted by their prospective adoptive parents made it unlikely that they would be adopted at this time. The CSW met with the children three times to discuss adoption, but each time the children refused to discuss adoption or to tell the CSW their wishes regarding adoption. The children refused to discuss adoption with two other CSW’s. Although the children understood that the law required their consent for adoption, they refused to state their adoption desires. The children’s therapist had provided no information about the children’s feelings about adoption or their adoption readiness. Because the children had not agreed to adoption, the DCFS recommended that legal guardianship remain the permanent plan.
The juvenile court continued the section 366.26 hearing to November 12, 2008.
The DCFS reported that Darci and Dominic refused to be interviewed about the possibility of adoption. The children told the CSW they did not want to be adopted on several occasions, most recently on October 28, 2008.
At the November 12, 2008, hearing, the children’s counsel stated that that the children informed her they wanted to be adopted. Dominic responded to the juvenile court that he wished to be adopted. The juvenile court stated: “Let this minute order reflect that Dominic nodded his head and he has a huge smile on his face and also said ‘yes’ and [Darci] has said ‘yes.’ And both of the children are smiling as they have addressed the court and [Darci] has expressed herself very well.” The juvenile court found clear and convincing evidence that Darci and Dominic were adoptable and would be adopted and that both children consented to adoption. The juvenile court ordered parental rights terminated as to both children and ordered the DCFS to proceed with adoptive placement.
Father filed a timely notice of appeal from the order terminating parental rights.
ISSUE
Father claims on appeal that the juvenile court erroneously terminated parental rights and erroneously ordered adoption, because there was no substantial evidence that Darci and Dominic consented to adoption.
DISCUSSION
Father claims that because they were over 12 years of age, they could object to termination of parental rights, and the juvenile court erred in refusing to apply the child-objection exception to adoption in section 366.26, subdivision (c)(1)(B)(ii).
Section 366.26, subdivision (c)(1)(B)(ii) states that removal of the child from the parent’s custody and termination of reunification services “shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
“[¶]... [¶]
“(B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
“[¶]... [¶]
“(ii) A child 12 years of age or older objects to termination of parental rights.”
This court applies the substantial evidence test to a finding that a section 366.26, subdivision (c)(1)(B) exception does not apply. If a review of the entire record shows that substantial evidence supports the juvenile court’s findings, this court upholds those findings. The appellant has the burden of showing that substantial evidence does not support the order. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)
The juvenile court has no sua sponte duty to determine whether an exception to adoption applies. The party claiming an exception to adoption has the burden of showing by a preponderance of evidence that an exception applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) In juvenile court, Father failed to claim that the section 366.26, subdivision (c)(1)(B)(ii) exception applied, and thus forfeited that claim on appeal.
Moreover, the evidence shows that in the section 366.26 hearing, Darci expressed her desire for adoption by her legal guardians. The juvenile court also asked Dominic:
“THE COURT: But you do wish to be adopted; is that correct, Dominic?
“THE MINOR: Yes.
“THE COURT: Is that ‘yes’?
“THE MINOR: Yes.
“THE COURT: Let this minute order reflect that Dominic nodded his head and he has a huge smile on his face and also said ‘yes’ and [Darci] has said ‘yes. And both of the children are smiling as they have addressed the court and [Darci] has expressed herself very well.” Thus substantial evidence supports the juvenile court’s finding that both children consented to adoption.
Father cites conflicting evidence. On January 16, 2007, Darci said she was not interested in being adopted. On June 11, 2008, the children were reported to at times express positive feelings regarding adoption, but hesitated to be open with social workers about their feelings. The DCFS reported that “[n]either child is willing to discuss [adoption] with the CSW and have discussed difficulty with the concept with other social workers.” On September 9, 2008, the DCFS reported it was unlikely that the children would be adopted at that time because of their inability to state that they wanted to be adopted by their legal guardians, and on three occasions the children refused to discuss adoption with a CSW. The DCFS reported in November 2008 that the children refused to be interviewed for the possibility of adoption, and on October 28, 2008, told the CSW they did not want to be adopted.
At other times, however, Darci and Dominic expressed their consent to and agreement with adoption by their legal guardians. On May 2, 2006, Darci was reported to be exploring her feelings about adoption and felt that she wanted to be adopted if it was an open adoption so she could still visit her mother. On September 20, 2006, the DCFS reported that when a CSW asked Darci how she felt about being adopted by her legal guardians and still visiting her mother, Darci said, “That’s what I want.” In May 2007, Darci had expressed feelings of wanting to be adopted by her legal guardians. On March 11, 2008, Dominic stated that he wanted to be adopted by the legal guardians.
The trial court was required to resolve the conflict in the evidence. In reviewing the findings to determine whether they are supported by substantial evidence, this court does not attempt to resolve conflicts in the evidence evaluate the weight of the evidence. Instead “we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion.” (In re Christopher L., supra, 143 Cal.App.4th at p. 1333.) The evidence of the children’s agreement with and consent to adoption at the November 12, 2008, hearing afforded the juvenile court a reasonable basis for ascertaining the children’s wishes as regard adoption. (Id. at p. 1335.) We conclude that substantial evidence supports the finding that Darci and Dominic agreed with adoption and that section 366.26, subdivision (c)(1)(B)(ii) did not provide an exception to termination of parental rights.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J. CROSKEY, J.